When Picking SJC Judges, Gov’s Judgment Matters

[password]Who will replace Margaret Marshall when she retires as chief justice of the Supreme Judicial Court in October? And who are the people responsible for selecting the candidates?

To non-lawyers, these questions might seem like “inside baseball.” But they are important questions, the answers to which are likely to impact Massachusetts for decades to come.

Massachusetts judges are appointed by the governor and serve until the mandatory retirement age of 70. So judicial appointments are often a governor’s most enduring legacy. Laws and regulations can be repealed; judicial decisions are rarely, if ever, overturned. Marshall’s replacement will almost certainly have a more lasting impact on the state than, say, Scott Brown’s election to the Senate. But outside the legal community, few people seem to care.

They should. Judges are often the last word on policy issues ranging from the rights of criminal defendants to abortion. Take, for example, the decision with which Marshall is most closely associated – the Goodridge decision legalizing gay marriage here. Regardless of where you stand on the marriage question (or on the court’s role in resolving the issue to begin with), Goodridge (decided 4-3) makes one thing clear: Judicial appointments matter.

So who, exactly, are the men and women who screen the candidates for these important jobs? You’ve probably never heard of the Judicial Nominating Commission (JNC). Nor (I suspect) can you name any of the 21 men and women who serve on the board charged with recommending a slate of three to six candidates to the governor.

Gov. Michael Dukakis created the first JNC in 1975 as a “clean government” measure to reduce patronage. Since then, every Massachusetts governor has had one.

But why? Sure, it makes for good public relations. Politicians love to say they relied on the recommendations of a blue ribbon panel when making controversial or unpopular choices. Moreover, by delegating the screening process, politicians can create the appearance of professionalism and nonpartisanship. That appearance, however, is an illusion designed to deflect responsibility – make no mistake about it, a judicial nominating commission is a political body, particularly where, as here, the governor appoints all of its members.

To be sure, it is not possible to remove all political considerations from the judicial selection process. That is why the process should remain in the hands of the governor, who is directly answerable to the people, instead of residing in the hands of unelected, virtually anonymous lawyers.

[Full disclosure: my husband served on the JNC as one of those “unelected, virtually unknown lawyers” during the Romney administration.]

The best way to avoid patronage appointments is to elect honest politicians. Then, pay attention. Remember that judicial appointments matter, and when necessary hold politicians accountable for their appointments at the polls.

To Gov. Deval Patrick’s credit, his JNC process is mandatory only for Trial Court and Appeals Court appointments. For appointments to the Supreme Judicial Court, the governor may choose to utilize the JNC (as Patrick has done before) or he may select someone on his own.

The governor’s legal counsel has stated that the JNC will play a role in selecting Marshall’s replacement. (Although sources tell me that Patrick has not yet asked for applications to be submitted to that body.)

I, for one, hope that this time around Patrick decides to bypass the JNC. For if our governor can’t be bothered to screen his own judicial nominees, we certainly can’t expect the public to pay close attention. Or is that the idea?[/password]